Category Dentist Lawsuits

Yelp’s Warning: This Dentist Might Sue You For Posting A Negative Review

Leticia Miranda

BuzzFeed News

July 25, 2016

After suffering through tooth pain for some time, Mary Rohs decided to see a dentist. Rohs, a New York resident, scheduled an appointment at Advanced NYC Endodontics with Dr. Nima Dayani on July 16, 2015, to treat the pain.

More than a year later, the fallout from that routine appointment — a negative Yelp review by Rohs, and a lawsuit by Dayani claiming the review was defamatory — continues. And today, Yelp itself got involved, placing a new “consumer alert” on Dr. Dayani’s Yelp page, warning that his business may be “issuing questionable legal threats against reviewers.”

“Consumers have the right to share their opinions about their experiences with businesses,” Yelp said in a blog post announcing the new alerts. “But there will always be a small handful of businesses who mistakenly think it’s a good idea to threaten consumers who exercise their free speech rights.”

Court records say Rohs showed up to Dayani’s office around 11 a.m., filled out intake forms, and was shown into an exam room about 20 minutes later, where she had additional X-rays taken of her mouth.

According to Dayani’s timeline of her visit, Rohs spent about two hours at the office. He argues that he was treating other patients while Rohs sat in the exam room, but he made sure to discuss her dental history in length and take additional X-rays to check out her complaints about cold sensitivity. “By the end of her visit, she had two concurrent definitive diagnoses,” said Dayani in an affidavit. “They were discussed with her and a plan of treatment was formulated.”

But in a Yelp review dated July 27, 2015, Rohs described a frustrating experience. She complained about the “absurdly long wait” at the end of which she said Dayani couldn’t come to some clear diagnosis. “Of the total TWO HOURS FIFTEEN MINUTES I was there, I think I was speaking to Dr. Dayani for about 30 minutes of that whole time,” she wrote. “The rest was spent in his chair, without being offered a water or a magazine.” To make matters worse, she adds, “he couldn’t help determine what was bothering me. I left with a mouth full of pain and a recommendation to see my dentist for a possible cavity.”

Dayani, who says he gets plenty of positive and negative feedback on Yelp and is comfortable with both, says the claims by Rohs weren’t simply a negative review. He alleges her comments amount to defamation, and he sued Rohs two days after the review was posted. It’s an accusation the dentist has levied against at least four previous patients who have written negative reviews about his practice, according to a BuzzFeed News review of court records.

Dayani said false negative reviews like Rohs’ have harmed his practice over time. He said he laid off one part-time staff member because of a drop in business. “[Rohs] accused me of malpractice by saying I didn’t diagnose her,” he said. “When you are publicly accusing someone of malpractice, you are damaging their reputation.”

Rohs declined to comment to BuzzFeed News because the lawsuit is ongoing.

It’s likely that Rohs, like millions of Yelp users, had no idea that a negative review could land her in court. But as online reviews become more critical to companies looking for new business, people have become increasingly vulnerable to such lawsuits, which can chill free speech, consumer advocates told BuzzFeed News.

“When you as a consumer share your honest opinion in some type of public way on Yelp or otherwise, it can mean negative reviews,” Yelp’s vice president of public policy, Luther Lowe, told BuzzFeed News. “Businesses, rather than responding diplomatically or using feedback to improve operations, go out and hire a lawyer wagering that the consumer who wrote this review is more likely to pull the review off than hire a defense attorney and defend themselves. By merely threatening, it doesn’t take going to court to bully the person in order for that business to censor the user.”

The consumer alert Yelp put on Dayani’s page Monday is the third time the company has placed such a warning, Yelp spokesperson Hannah Cheesman told BuzzFeed News.

The company placed its first legal alert on a Texas pet sitting business called Prestigious Pets in May. The pet sitting company sued a customer for violating the company’s nondisparagement, or “gag,” clause when she posted a negative review about the company’s care for her fish.

Superior Moving & Storage in Florida was hit with a legal alert on its page in June after it sued one of its previous customers for defamation. Both cases are ongoing.

Lowe said that businesses sometimes include so-called gag clauses into their terms of service contracts. When the contract is signed, the consumer gives up their ability to publicly criticize the company. Other companies include contract clauses that prohibit consumers from saying anything publicly at all about the company, while others, like Dr. Dayani, may allege defamation and libel in court based on the negative review.

Yelp’s rollout of the consumer alerts comes as Congress considers two bills designed to protect consumers from being sued for posting negative reviews online. California and Maryland are currently the only two states that prohibit the inclusion of gag clauses in contracts.

The “Right to Yelp Bill,” also called the Consumer Review Fairness Act, would ban gag clauses from business contracts, while the SPEAK FREE Act would allow consumers slapped with a lawsuit over an online review to dismiss the claims early on in court. But as the two bills, which have received bipartisan support, make their way through Congress, individual consumers are left to fend for themselves, with few legal precedents for such cases.

“We don’t have a lot of cases to point to so we don’t know how judges view them,” said Paul Levy, an attorney with Public Citizen and defense counsel in the Prestigious Pets case, told BuzzFeed News. “The question becomes did the person who signed the contract understand what they were giving away and did they understand they were giving away free speech? The second point is that it’s so unfair that it’s not able to be enforced.”

In two such cases, the suing companies never appeared in court to back up their claims. A Utah couple sued KlearGear in 2012, claiming they did not owe a debt for violating its terms of service by writing a negative review, but the company never appeared in court and couple received a default judgment including over $300,000 in damages. In 2014, a Wisconsin woman a lawsuit against Accessory Outlet after they demanded she pay $250 for violating its terms of sale. The company never appeared in court to defend its claims.

In one case, a dentist, who faced a class-action lawsuit by former patients who signed a gag clause to receive care, moved abroad before she could defend her breach of contract claims in court in 2012.

“The harms generally aren’t harms that are enforced in court,” Scott Michelman, a senior staff attorney with the American Civil Liberties Union who has previously defended consumers in four gag-clause cases, told BuzzFeed News. “Instead they are the harms of the consumers that are bullied by corporations in taking down critical reviews and also the harms of consumers who are chilled by these clauses from expressing their opinions.”

Yelp has found itself at the center of a similar lawsuit in California where a personal injury law firm sued a former client after she posted three reviews criticizing the company. Hassell Law Group accused Ava Bird of defamation after she refused to remove “factual inaccuracies and defamatory remarks” from Yelp reviews she posted in January, February, and April 2013. A lower court sided with the law firm in 2014 and required Bird to take down the comments. When she refused, the court held Yelp responsible for removing the comments. In June, an appeals court agreed that Yelp must remove the comments, but the company has yet to comply, arguing it is a third party in the case.

Dayani has sued at least four previous patients over online reviews, according to a BuzzFeed review of New York County Civil court records through 2012. He sued a patient in 2012 for defamation and $75,000 in damages for writing a negative review on Yelp. The man removed the review after he was slapped with the lawsuit. Neither the patient nor Dayani appeared in court and the case was dismissed.

In June 2013, Dayani sued another patient claiming $50,000 in damages after he posted a review on Yelp complaining that the dentist had overcharged him for a root canal. The patient and Dayani settled the claim in August 2013.

Dayani sued a Yelp reviewer in November 2012 who he said used a fake name to post a negative review about her experience where she called him “rude, callous, abhorrent.” Dayani claimed the review amounted to $25,000 in damages. The defendant, “Jane Doe,” never responded to his complaint.

In June 2015, Dayani sued a woman who wrote a Google review claiming that he suggested she should undergo two root canals during a visit. She said she sought out a second opinion from another dentist who gave her a cavity filling and replaced a crown, which treated her tooth pain. “I am so happy that I didn’t get treated in this place,” she wrote. “If I did, I would have paid more than three thousand dollars for the treatment that I didn’t need at all.” Dayani is seeking a total of $100,000 from the woman for damages, according to court records.

Dayani does have a number of good reviews online from people who have described him as “thorough and knowledgeable.” “After doing a lot of research I chose Dr. Dayani,” said one Yelp reviewer called Eva H. “I couldn’t be happier. He is gentle, thorough, and highly professional. His staff is excellent. He is the best and I felt as relaxed as I will ever be at a dental appointment.”

Dayani insists that he only goes after online reviewers who post false information. He offered BuzzFeed News the opportunity to visit his office and review records related to the cases where he has sued patients to prove their allegations are false. BuzzFeed News declined.

He said he has adjusted his practice and opened a larger office after reading a number of negative reviews, including an emergency patient who complained in a one-star Google review about a long wait time at his office. However, the review does not appear to be online anymore.

When asked if he believes the lawsuits escalate a situation that could be resolved through other means than litigation, he insisted that he believes in free speech but draws the line at falsehoods. “When somebody writes lies about you with intent to deliver a damage to you and livelihood, that is defamatory,” he said. “I’m not Halliburton. A lie can do tremendous damage and can come at the expense of doctors and staff.” “If there are people out there doing it out of spite and not willing to correct a known lie, let an impartial judge decide,” he added. “I’m encouraging anyone to write a comment they think is correct and justifiable.”

Health care quality reporting is not a new phenomenon, and information about patient experiences and satisfaction is available in many forms. For example, as part of its “Hospital Compare” initiative, the federal government publishes hospital patient experience ratings based on criteria like “nurses’ and physicians’ communication skills, pain control, cleanliness, and whether the patient would recommend the hospital to friends and family.” Some state governments, nonprofit organizations, and health insurers publish similar reports of patient satisfaction based on a variety of subjective and objective criteria. According to one commentator, this trend toward quality reporting has increased due to factors like greater attention to health care quality concerns and cheaper, more widespread access to technology.

Consumers are increasingly going online to inform their health care decisions. As of 2009, more than forty websites like Angie’s List, Yelp, and RateMDs offer reviews of medical care providers. Even Zagat, best known for its travel and leisure guides, entered the business of physician reviews in 2008. In addition to providing basic information about a provider’s licensure, office locations, and disciplinary record, these physician-review websites allow patients to rate their experiences—often anonymously—on criteria like the physician’s punctuality, knowledge, bedside manner, and even staff friendliness. Based on these categorical ratings, review sites calculate an overall “score” for the provider, usually represented numerically (e.g., “8/10” or “four stars out of five”). Some review sites allow patients to supplement their grades with comments or narratives while others compile only numerical data.

Commentators debate the usefulness and legitimacy of physician-review sites. For example, while one analyst argues that these websites can improve standards of care by physicians by providing timely and detailed feedback to providers, another responds that the anonymous and unscientific data gleaned from these sites is worthless or even detrimental. The American Medical Association (AMA) and some states’ attorneys general have expressed concerns that these ratings merely reflect disgruntled patients’ venting and can be misleading. Similarly, the American Academy of Family Physicians has warned that “choosing a physician only according to consumer ratings can deprive patients of high quality medical care, particularly if those ratings are based on unrecognized and unvoiced anger or unjustified allegiance.”

So how do physicians fare on these websites? For all the wrath these sites have provoked, the result is surprising: studies show that doctor ratings are overwhelmingly positive. For example, one study of thirty three physician-rating websites found that 88 percent of reviews were positive, while 6 percent were negative, and 6 percent were neutral. Another study analyzing 15,000 reviews from 2004–2010 on the site DrScore.com found the average doctor rating was 9.3 out of 10, with an astonishing 70 percent of reviewed physicians receiving perfect scores.

Although review sites are increasingly popular, they may not yet factor significantly in consumers’ health care purchasing decisions. A 2011 study conducted by the Pew Research Center’s Internet & American Life Project concluded that physician-review sites “have not yet become health care decision-making tools for most consumers.” Indeed, only 16 percent of Internet users have consulted online rankings or reviews of doctors or other providers, while 4 percent of Internet users have posted an online review of a doctor. Another study, however, reports higher figures: that 37 percent of adults have consulted physician-rating sites, and 7 percent of people who sought information about their provider posted a review online.

Based on these findings, it seems strange that doctors and medical organizations have reacted so strongly to online reviews. There may be several explanations for their discomfort. While provider reviews on the whole are positive, individual doctors may still dislike negative ratings. Obviously, no one wants to be criticized, especially on such a public and enduring forum as the Internet. Reviews of individual doctors also tend to be spread out over different websites. For example, a physician who has four ratings on RateMDs, two of vwhich are negative and neutral, may feel that his practice is unfairly represented to those who consult only that website. And the subjective nature of review sites may particularly rankle scientifically minded medical professionals.

But there may be more intriguing practical and philosophical issues at play: online reviews might present harms and challenges that uniquely affect the medical profession. First, patient privacy protections restrict how and when doctors can respond to critical reviews. Second, doctors may believe that they are unfairly criticized by patients who lack the specialized medical knowledge to comment meaningfully on their treatment. Third, certain professional and societal factors may intensify the sting of patient criticisms.

While some review websites like Yelp allow critiqued businesses to respond directly to criticism, physicians may not be able to post detailed rebuttals because of patient-privacy protections under state law and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Specifically, the HIPAA Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral; this information is termed “protected health information (PHI).” Patients may freely self-disclose PHI—and many do when they volunteer detailed accounts of their care online. But this does not mean that a patient automatically authorizes the doctor to discuss all aspects of the patient’s treatment. If a physician discusses or transmits PHI without a patient’s consent, she faces penalties of up to $50,000 per violation depending on its nature and extent and resulting harm. Thus, while a hotel manager may be able to mitigate a negative review by directly and thoroughly responding to a critical review, a physician risks violating a patient’s privacy rights if she provides specific details about a reviewer-patient’s care. In the words of one chagrined dentist, “Patients get to lie on Yelp, but because of HIPAA, we cannot tell the truth about the patient and what really happened.”

Although HIPAA’s privacy safeguards uniquely restrict a physician’s ability to thoroughly respond to poor reviews, doctors may still effectively respond to criticisms with general information about their practices and procedures. Thus, a physician can respond to complaints about parking, staff, or billing structure without fear of violating a patient’s privacy. According to the founder of one physician-review website, complaints about wait times are a “huge issue,” as are comments about poor bedside manner and curtness. Physicians may even respond to specific criticisms about medical care by describing their practice’s procedures and standard of care without confirming or denying that a reviewer is a patient.

Physicians may feel that they are unfairly maligned by patients who lack the specialized medical knowledge to comment objectively on their treatment. Some commentators argue that the typical lay patient cannot—and therefore should not—make technical assessments that others might rely on.

Yet studies have revealed that patients’ online reviews are not typically objective, technical critiques; rather, they focus heavily on nonclinical factors like the amount of time the doctor spends with them, parking accommodations, and ease of scheduling appointments. For example, one study found a very strong correlation between online patient satisfaction ratings and shorter office wait times. Available data indicates that patients simply are not evaluating “surgical technique or diagnostic abilities” despite what many doctors seem to fear. While these types of findings naturally raise arguments about the value of subjective “customer service” focused reviews, physician-review websites are best understood as just one resource that consumers can consult when making health care decisions, alongside other objective quality measures like aggregated clinical data. The subjective experience does matter to patients, and patient reviews can capture things that do not show up well in objective statistics; for example, whether the doctor includes the patient as a partner indecision-making or whether the office staff is rude or unhelpful.

Opponents of review sites may also argue that these sites ignore the collaborative nature of medical care. For example, if a non-adherent patient fails to be responsible in her own care, the physician should not be blamed for a poor treatment outcome. Furthermore, because receiving shoddy health care can have devastating consequences on a patient’s well-being, consumers may be unusually sensitive to any negative comments about providers.

While non-adherent patients are an unfortunate reality, doctors should not fear the occasional negative review. Studies indicate that some mediocre or negative ratings actually improve consumer confidence in reviews because mixed reviews are perceived as more genuine.

Physicians must also trust that prospective patients will be savvy consumers of review data who can decide what is trustworthy. And even if patients are especially impressionable to health review data, physicians should embrace review sites and proactively use them as a tool to actively increase business and respond to patients’ concerns. Today, “physicians compete for patients just as business people compete for customers.” Doctors disadvantage their practices when they ignore anecdotal reviews or passively wait to receive feedback.

A significant component of medical education aspires to make doctors skillful, knowledgeable, and moral practitioners. Reflecting this goal, Principle 1 of the AMA’s Principles of Medical Ethics provides that a physician “shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.” Principles 2 and 8 further state that a physician should “uphold the standards of professionalism, be honest in all professional interactions[,]” and “regard responsibility to the patient as paramount.” Beneficence and nonmaleficence, the respective duties to do good and to do no harm, are foundational principles in the ethos of medicine. When a patient alleges in a review that a doctor harmed her, whether through a medical error or even an offensive bedside manner, that criticism strikes at the heart of the doctor’s professional integrity. Even unflattering remarks about staff friendliness or parking accommodations may be interpreted to impugn a physician’s ability to run her practice well.

As discussed below, however, doctors should recognize that critical patient reviews, although sometimes uncomfortable to read, can give them direct insights into their patients’ preferences and priorities. Doctors should interpret these criticisms constructively and consider whether changing certain behaviors or aspects of their practices would be in their best financial and professional interests.

With the rise of physician-review websites, doctors have increasingly been suing and threatening to sue their patients over their reviews. This section explores defamation law.

Defamation law attempts to balance a plaintiff’s interest in an untarnished reputation against a defendant’s First Amendment right to freedom of speech. Many legal experts and health care professionals believe that the tort of defamation is the proper legal response to addressing injurious or false reviews. On the other hand, defamation law frequently skews toward the protection of free speech, and cases are notoriously difficult for plaintiffs to win: one study found that only 13 percent of defamation plaintiffs prevail. This is primarily for two reasons. First, plaintiffs must meet a high prima-facie burden in demonstrating defamation. Second, a defendant can escape liability through a “panoply of privileges and affirmative defenses.” Historically complex, defamation law becomes even more complicated when applied to online reviews, implicating issues like author anonymity and questions of service provider liability.

Defamation is a creature of state law, so the precise requirements vary from state to state. However, a cause of action for defamation generally requires: (1) a false and defamatory statement concerning another; (2) an unprivileged communication of that statement to a third party; (3) fault amounting to at least negligence on the part of the speaker; and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). A communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Courts consider the circumstances surrounding the communication and evaluate its effect upon the average reader or listener.

Analysis depends on whether the statement was slander (oral defamation) or libel (written defamation). At common law, if the communication was slanderous, the plaintiff must prove that the statement caused economic loss. On the other hand, if the communication was libelous, the plaintiff ordinarily does not have to prove economic harm. The rationale behind this distinction is the permanence of written communications as opposed to the ephemeral qualities of spoken ones. In all cases challenging online patient reviews, plaintiff physicians have proceeded under the theory of libel.

Certain categories of speech are so plainly defamatory that they do not require a plaintiff to show any special (i.e., economic) harm. Injury to reputation is presumed merely from the fact of publication. A statement can be defamatory per se if it imputes the commission of a crime or “incompetence, incapacity, or unfitness in the performance of [one’s] trade, occupation or profession.” Thus, statements that a physician acted unprofessionally or unethically are presumptively defamatory. For example, in Nasr v. Connecticut General Life Insurance Company, the court upheld the per se defamatory characterization of slanderous statements that a physician was a “quack,” operated a “racket,” prescribed ineffective treatments, and was “under investigation.” Similarly, in Fuste v. Riverside Healthcare Association, Inc. , the court held that slanderous statements that two doctors “abandoned” their patients and that there were “concerns about their competence” prejudiced the doctors in the practice of their profession and were defamatory per se.

While critical patient reviews might inherently seem defamatory per se, that is not necessarily the case: “a mere expression of dissatisfaction with a person’s professional performance is not defamatory per se.” As discussed below, the powerful defenses of opinion and substantial truth can also shield patient-reviewers from liability for statements criticizing a doctor’s fitness as a practitioner.

When a plaintiff is a private citizen defamed about a private matter, the defendant must be at least negligent with respect to the truth of the statements. A defendant is generally negligent when she fails to act reasonably in attempting to learn whether a statement is true or false. On the other hand, plaintiffs who are “public figures” must meet an additional burden, showing that the defamer acted with “actual malice.” To prove actual malice, the plaintiff must show that the defendant acted with knowledge of falsity or reckless disregard for the truth.

The fact that an individual practices medicine does not automatically make her a public figure, though she may become one if she holds herself out as a pioneer, “seek[s] to develop and advance a new treatment option,” or seeks publicity or injects herself into a matter of public controversy. For example, in Rodriguez-Erdmann v. Ravenswood Hospital Medical Center, a physician was denied staff membership at the hospital where he worked. After the physician held several press conferences alleging that he was discharged in retaliation for “speaking out about problems of malpractice,” the hospital circulated a memo stating that the physician was merely acting out of disappointment. In the resulting libel suit, the court held that the doctor was a public figure in this instance because he “thrust himself to the forefront of the controversial issue of medical malpractice.” Because the physician could not prove actual malice, the court affirmed dismissal of his suit. Thus, a “public figure” physician must satisfy the higher burden of proving actual malice to sue a patient for a review implicating that status.

Physician-review websites frequently allow users to post their impressions without requiring any personally identifying information. Because the First Amendment protects the rights of individuals to speak anonymously, even on the Internet, physicians may have difficulty identifying anonymous and pseudonymous defendants. A doctor may have to issue a special production of evidence subpoena to a website administrator or web host to compel them to reveal identifying information about an anonymous poster. Once the poster is “unmasked,” the defamation suit can proceed as usual. Courts, however, have expressed discomfort with issuing these types of subpoenas, citing the potential of impermissibly chilling free speech.

There is no clear standard that courts apply when asked to identify an anonymous defamation defendant on the Internet. One authority, however, is Dendrite International, Inc. v. Doe No. 3, in which the court articulated a four-part test for when an anonymous poster’s identity may be revealed. First, the plaintiff must make an effort to notify the anonymous poster that an order for disclosure is pending against him and to allow the anonymous defendant reasonable time to oppose the application. Second, the plaintiff must specifically identify the allegedly defamatory material. Third, the plaintiff must present a prima facie case of defamation against the anonymous poster. Fourth, the court must balance the defendant’s First Amendment right to anonymous free speech against the strength of the plaintiff’s prima facie case and the need for the defendant’s identity to be revealed for the case to go forward.

Even if a physician can successfully establish a prima-facie case of defamation, a complex set of protections and affirmative defenses may shield a poster’s online comments. Aggrieved doctors are further stymied by the Communications Decency Act (CDA), which protects websites that host disparaging comments. Finally, the threat of anti-SLAPP (Strategic Lawsuits Against Public Participation) suits and negative publicity resulting from a defamation suit may effectively be defenses by barring or deterring a physician from bringing a defamation suit.

In an online defamation case, both the author of the defamatory statements and the operator of the service displaying the defamatory material are potential defendants. For economic reasons, plaintiffs might prefer to sue Internet Service Providers (ISPs) and website administrators rather than individual authors who are less likely to have “deep pockets.” However, Section 230 of the CDA largely immunizes ISPs from liability for content posted on their websites. Specifically, subsection 230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher of any information provided by another information content provider.” In other words, even if a website allows users to post potentially actionable content, these sites are immunized from liability. As a result, “nearly all of the cases interpreting Section 230 defenses have found ISPs immune.” However, ISPs or site administrators may still be liable if they “interact[] with the content or its source” or are “responsible for the creation or development of the content.” Perhaps the clearest example of this exception is editing user comments: if a review website alters a user’s statements in such a way that they can be read defamatorily, the site loses Section 230 immunity.

In Reit v. Yelp!, Inc., dentist Glenn Reit sought a preliminary injunction requiring the consumer review website Yelp to remove an anonymous comment alleging that that his office was “small,” “old,” and “smelly” and that the equipment was “old and dirty.” Reit blamed the post for reducing the number of appointment calls he received from ten to fifteen per day to four or five per day. The court denied Reit’s request for an injunction, finding that Yelp was an “internet computer service” within the contemplation of Section 230 and therefore free to display the post. *

Although it is largely fruitless for doctors to sue review websites directly, physicians still have a strong interest in pursuing the individual authors of offensive material. Aside from the obvious desire to remove reviews, a physician may act to recover damages or for personal vindication. We turn now to the defenses available to the individual authors of defamatory content, including truth and opinion.

It is axiomatic that truth is an absolute defense to defamation. To be clear, however, a defendant does not have to prove that a statement is entirely true to escape liability, only that it is substantially true. Courts may “overlook[] minor inaccuracies” in allegedly defamatory material and focus instead on the overall gist of a statement when considering its veracity.

But even true statements can be defamatory when they are misleading or mischaracterize the plaintiff. For example, in Wong v. Tai Jing, a father posted a scathing review of his child’s dentist on Yelp. In his post, he implied that the dentist dangerously administered general anesthesia, failed to disclose that the child’s fillings contained mercury (a potentially dangerous heavy metal), and misdiagnosed the child. While the dentist did in fact apply general anesthesia, implant a filling with mercury, and did not discover all of the child’s cavities, the court found that the father’s review deliberately omitted the legitimate reasons underlying these circumstances. Thus, even though the review was technically factual, its accusatory tone and misleading implications transformed it into libel. **

The defense of opinion is another privilege that may be remarkably difficult for an aggrieved physician to overcome. As a threshold matter, courts must determine whether allegedly defamatory speech asserts facts or opinions. The First Amendment protects pure statements of opinion, no matter how derogatory. On the other hand, a disparaging statement may be actionable if an average reader or listener might reasonably believe that it is an assertion of fact. Courts look to the nature and context of a statement to determine if it is a protected opinion. A statement that “appears in a place usually devoted to, or in a manner usually thought of as representing personal viewpoints, is . . . likely to be understood—and deemed by a court—to be nonactionable opinion.” A comment is not usually defamatory when it is hyperbolic, wildly offensive, or consists of “loose, figurative language.”

Thus, a physician who believes that she is defamed on a review site must show that an offending comment could reasonably be interpreted as factual. Ironically, outrageous accusations that might offend a physician the most are likely protected because of their hyperbolic quality. For example, a statement maligning a physician as “the biggest idiot I have ever met” likely would be nonactionable.

Physicians who sue a patient for posting a negative review may also be subject to an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion to strike the complaint on the grounds that the online posting is protected public interest speech. Over half of the states have adopted anti-SLAPP legislation to curb frivolous lawsuits that defamation plaintiffs frequently bring to harass, bully, and intimidate critics into silence. Although these laws vary from state to state, they share two key features. First, they provide an expedited procedure to short-circuit SLAPPs, conserving all parties’ time and resources. Second, successful defendants are awarded legal defense costs. Thus, facing the double risks of a dismissed suit and having to pay the defendant’s fees, physicians must think carefully about the merits of a case before bringing a potential SLAPP.

Finally, one of the most significant challenges facing potential online defamation plaintiffs is a phenomenon humorously referred to as the “Streisand Effect.” In 2003, Barbra Streisand unsuccessfully attempted to sue photographers for $50 million to remove an aerial photograph of her mansion from the Internet. Before Streisand filed the suit (claiming invasion of privacy), hardly anyone knew the picture existed; after she filed the suit, the photo was downloaded and viewed 420,000 times. Thus, the Streisand Effect “covers those situations where the threat of legal action has brought publicity to the information sought to be suppressed.” When physicians choose to pursue an online defamation case, they risk calling attention to a statement that might otherwise go unnoticed; this heightened publicity is exactly the opposite of what the physicians want. In the words of one commentator, “the remedy may be worse than the problem.”

Indeed, the Streisand Effect has played out with surprising ferocity when physicians have attempted to suppress negative online reviews. For example, in 2010, a Minnesota physician filed a $50,000 defamation lawsuit against the son of a former patient. Angered by the physician’s alleged mistreatment of his eighty-five-year-old father, the son posted several negative reviews online that criticized the doctor’s poor bedside manner, disinterested attitude, and insensitivity. After the doctor filed suit, news of the litigation reached Reddit.com, a popular social media website, where readers promptly set out to excoriate the doctor online. As a result, Reddit users churned out over a hundred scathing comments across the web about the physician and the lawsuit. ***

For a physician who simply wants to remove a review she believes or knows is unfair or untrue, resorting to defamation law can be a nightmare. It is frustratingly complex, with a dizzying array of factors to juggle. Physicians may have difficulty establishing a prima-facie case, and even if they can, defendants may escape liability through a vast network of defenses and privileges. Litigation may attract publicity to an otherwise unremarkable claim. And practically speaking, lawyers are rarely willing to offer a contingency fee arrangement in defamation practice; many patient-reviewers will likely be judgment-proof as well.

This Note does not call for physicians to entirely abandon defamation law. For example, if a review falsely alleges serious misconduct, a doctor should consider filing suit. But in less extreme cases, this Note advocates looking to defamation as a measure of true last resort, and only after careful and realistic consideration of the case’s merits.

A search on the business rating site Yelp for attorneys in San Francisco yields 5,681 results. Although Yelp and similar sites are probably best suited for restaurants and night clubs, many people use the site to review professionals. These reviews influence potential clients. The Lawyerist.com, a blog for legal professionals, recently polled a thousand people with the question: “When you need to find a specialty lawyer, how would you start your search?” Twenty-two percent said that they search Google or another search engine, 10 percent said that they “look elsewhere on the internet” and 2 percent said that they “ask on my favorite social network.”

Yelp is not the best indicator of an attorney’s ability—but most people using Yelp don’t know that. Most experiences with Yelp reveal that generally bad restaurants get bad reviews and good restaurants get good reviews. However, some places of business and now some attorneys either pay people to write good reviews or ask their dearest friends to rate their lawyer skills online. Thus, inexperienced lawyers who are savvy with social networking can have outstanding reviews and more seasoned, but less Internet-savvy attorneys can have bad reviews and not even know about it. In some instances, attorneys might be rated for things that have nothing to do with their legal abilities. There is really no way to tell why someone rated a particular attorney with high marks.

However, the troubling question is, what can a lawyer do to fight back when he or she receives a negative review on Yelp? According to some ethics experts: not much. In the Los Angeles County Bar Association’s Formal Ethics Opinion #525, the authors concluded that any public response to a negative review online must not “disclose confidential information,” must “not injure the former client in any matter involving the prior representation” and must be “proportionate and restrained.” The part about not disclosing confidential information can leave attorneys at a huge disadvantage when responding online.

Because opinions are protected by the First Amendment, clients are usually within their rights to log onto social media sites and trash their attorney, as long as they don’t knowingly make false statements—a hard standard to prove. Further complicating matters is the attorney-client privilege, which restricts the attorney as to what he or she can say to respond, if that requires divulging privileged information. For instance, imagine a client that hired a personal injury attorney with unreasonable expectations of receiving millions of dollars in settlement, or a client that ended up slighted in a divorce settlement because of his or her own bad behavior. The client could then go on Yelp, AVVO, LawyerRatingz, Angie’s List, etc., and tell the world that the attorney botched the case. In this situation most people would reasonably want to defend themselves against these accusations by pointing out the client’s own bad behavior. But as lawyers we cannot. So what can we do?

A professional can always sue over a bad review for defamation—but only if the statements made in the review were false. Even then, it’s probably not a good idea. The Associated Press recently reported about a Minneapolis Neurologist, David McKee, who sued a patient’s son for defamation after he wrote a scathing review, including disparaging comments allegedly said by the doctor to him and his family following his father’s stroke. McKee claims that the statements attributed to him were not true. This particular case has not been decided ( * ), but such suits are rarely successful. A study by Eric Goldman, a professor at Santa Clara University School of Law, revealed that of the 28 physicians who have recently filed similar suits, 16 of them were dismissed and six of them settled.

Defendant Dennis Laurion

Plaintiff Attorney Marshall Tanick

Plaintiff David McKee MD

The outcome of such suits can be devastating. In a July 13, 2009, article the San Francisco Chronicle reported about a California dentist, Yvonne Wong, who sued a patient and Yelp after the patient posted a negative review on Yelp’s site. Ultimately, Ms. Wong was ordered to pay more than $80,000 in attorney’s fees to her patient and Yelp. The judge ruled in that case that California’s stringent anti-SLAPP law could be applied because the patient had mentioned mercury fillings in her review, and thus the review furthered discussion of an issue of public interest.

Even Yelp’s spokeswoman Kristen Whisenand recommends against using the “nuclear option” and suing for a negative review. Why? Because it usually only brings more attention to the negative review—which is what the professional didn’t want in the first place. For example, in 2007, the New York Times reported about attorney John Henry Browne who sued the lawyer-ranking site Avvo alleging that his 5.7 (out of 10) ranking was damaging to his law practice. A federal judge held that the reviews were protected under the First Amendment right to express opinions and dismissed the case. The case brought more public notice to the negative Avvo reviews that the attorney wanted removed in the first place. A search of the same attorney now shows that he was able to raise that number to 6.6, so maybe he learned a thing or two since then. Or maybe he simply became more Internet-savvy and learned how to work the system.

The best option for attorneys is to check the ratings websites, and respond to the reviews in a friendly, proactive manner. For example, one San Francisco attorney with a rating of 2.5 stars on Yelp (out of 5 possible stars) responded to each and every one of his negative reviews in a polite manner that did not divulge privileged information. Although measures such as these may seem distasteful, the reality is that social media exists, people do check it when searching for an attorney, and the only thing attorneys can do is to stay on top of things.

Carol M. Langford has a practice in State Bar defense and professional licensing disputes in Walnut Creek. She teaches professional responsibility as an adjunct at U.C. Berkeley, Boalt Hall School of Law, and Hastings College of the Law. Additionally, Ms. Langford serves as an expert witness in cases involving complicated ethics issues and presents at conferences and symposiums across the state. She is a past Chair of the California Committee on Professional Responsibility and Conduct.

Dr. Mo Saleh, dentist, is suing a patient for $300,000, stating that the review his patient, Spencer Bailey, posted on Yelp is costing his business $100,000 a week.

Bailey now has a lawyer and an expensive court battle ahead of him after his fallout with Dr. Saleh who works at Optima Dental in Lake Oswego.

Bailey suspected he was getting questionable care. “I had never had a cavity before I set foot in his office,” he said. “He told me the day that I saw him that I had 10 or so cavities, which threw me for a loop – I was nervous that I had some other health problem.”

Bailey said three weeks after he posted his review, Dr. Saleh demanded Bailey take down the posting or be sued. Bailey said he removed it immediately. “In hindsight it didn’t matter, because even though I took down the opinion online, I’m still right here,” he said.

This type of lawsuit is not new, and we expect to see more in the future. Such lawsuits expose the legal struggle between free speech and responsible speech, meaning that these reviews can damage business’ reputations.

A judge decided the critical comments made on review site YELP.com and other sites were free speech.

“I’m disgusted. I’m actually really disgusted,” said dentist Mo Saleh, who tried to sue his former client, Spencer Bailey, for defamation after finding negative reviews on the Internet. “The reason I’m risking opportunity and risking this negative exposure is because I feel that this is wrong.”

But a judge threw out the suit before it got very far.

“When we walked into this courtroom, we didn’t walk on equal footing because of the Anti-SLAPP law,” Saleh said. The “SLAPP” in the Anti-SLAPP law stands for Strategic Lawsuit Against Public Participation.

Businesses can sometimes file those suits to quiet criticism. But the Anti-SLAPP law can be a friend to those who are taken to court, giving them free speech protection when they make comments in a public forum and concern a public interest, which a site like YELP seeks to serve.

“It’s not easy to be sued and dragged into court,” said Jeremiah Ross, the attorney who represented Bailey. “Just as we anticipated, they couldn’t prove their case because it wasn’t a defamatory statement.”

Still, Saleh may appeal, believing the online criticism was meant to harm him and not simply to inform the public. “I teach my kids to stand up when you’ve been wronged, and I think that’s absolutely disgusting what happened today,” he said.

One of the comments Bailey was accused of making was, “If Saleh finds a cavity, get a second opinion and get it filled by someone else.”

No matter how many times The Wealthy Dentist points out that suing for a negative online review is just bad dental marketing, another case makes headlines.

Three weeks ago we reported on dentist, Mo Saleh, who was suing a former dental patient for $300,000 for damage to his reputation and loss of revenue stemming from what he felt was an inflammatory negative online review.

And just this week the judge in the case decided to throw the lawsuit out, stating that online comments made by the dental patient were free speech.

To prove that the dental patient was guilty of libel, the dentist would have to establish that the statements made in the online review were false, that they caused the dentist harm, and were posted without proper research into the validity of the comments.

But if the online review is considered a statement of opinion about the dentist, as opposed to actual facts, then the dentist won’t get very far in a lawsuit for defamation, and here in California, as well as in Oregon, the law takes it one step further with Anti-SLAPP legislation.

California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. (The California Anti-SLAPP Project). The same is true on Oregon, where the dentist’s lawsuit was initiated.

According to KVAL news, Dr. Saleh may appeal the judges verdict, if he feels that the online review was meant to harm him and not simply to inform the public.

The Wealthy Dentist argues that Dr. Saleh’s money would be better spent initiating a new dental marketing campaign targeted at showcasing what his dental practice has to offer and bringing in new dental patients.

Most of the general public is beginning to look at negative online reviews with some skepticism because of many of the outlandish comments reviewers have made. Someone looking for a local dentist may see the negative review, but will also read the positive reviews, and probably ask a few people they know in the community for a recommendation. They most likely won’t make their decision based on one reviewer’s comments, and if a dental patient did decide on a dentist based on just one review, then a dentist might not want them as a dental patient.

But a dentist can do more damage to their reputation themselves and erase years of great dental marketing by engaging in litigation with a dental patient who has written a poor review of their dental practice.

Instead, spend that money on making your dental practice the best practice in town.

Jim Du Molin is a leading Internet marketing expert for dentists in North America. He has helped hundreds of doctors make more money in their practices using his proven Internet marketing techniques.

September 1, 2012

“Dr. Mo Saleh Sues Former Patient for Negative Review ”

Spencer Bailey did not care for the dental service provided Dr. Mo Saleh and left a negative review of his experience on Yelp.com. Dr. Saleh didn’t care for Bailey’s negative review and sued him for $300,000.

What if I had a bad experience? Can I say something negative?

We like to hear about the good, the bad, and everything in between. Be sure to include all the relevant facts and details, and don’t embellish your story for effect. We are big believers in freedom of speech, but beware the legal consequences if you post false information.

Yelp.com says it is okay for Spencer Bailey to leave a negative review as long as the information is true.

Did this dentist not pay attention to the news in his local area? It made quite a stir in Portland both around the middle of May, when the media found the story, and then again mid-July with the final hearing. It was on most every local news station and newspaper as well as national level, and overseas. Maybe this dentist did see the news and just thinks he is special. That could be the case. Do people who file defamation lawsuits have similar character profiles? That’s an interesting thought.

Dear Dr. Saleh: Let me help you out. You will most likely not win this case. Yelp is a site for “opinions”. Opinions are protected speech. Let me save you a lot of money. You might consider the following:

Pull out now. Withdraw the lawsuit immediately. Don’t waste any more attorney fees. You must do this immediately as now that the media has the story, your reputation could be far worse. Go look at my former pastor’s reviews to see what happened when people heard about a pastor suing former church members.

Look up Streisand Effect to see what happens in cases like mine (and yours). The Streisand Effect would not be good for your reputation. You will be doing far worse to yourself than Bailey ever did by his one negative review, which would have been buried by positives (if you really are a good dentist as you claim).

Issue a press release (maximum of 2 paragraphs – do not follow the example of the press release I have shown on my blog – that is far too long and will subject you to more public criticism). In the press release, consider expressing your heartfelt sorrow for having caused grief to Mr. Bailey. You might need to make things right with him because he could sue you!

Personal note to Spencer Bailey: Congratulations, Spencer – – I now see that you’ve got the best representation in Oregon!

Follow-Up to this story 9/3/12

I just read the Willamette Week news article on this case a few minutes ago and was so pleased to read that Spencer Bailey is in very good hands. He is being represented by my attorney, Linda Williams, and Jeremiah Ross. Woohoo!! And of course they have filed the motion to strike using the anti-SLAPP statute. The first hearing is scheduled for Wednesday. You can be sure I will be watching this case.

This article also shares what Spencer said in his reviews.

The reviews cited in the complaint include statements saying Bailey implied ”improper and insufficient dental services by Dr. Saleh.” The complaint further alleges that Bailey wrote, “if Dr. Saleh tells you that you have a cavity — GET A SECOND OPINION.”

According to the complaint. Bailey said he had never had a cavity in 32 years until Saleh found several. Bailey’s lawyers have responded by stating that Bailey went to Saleh for dental work and then went to another dentist after experiencing pain. They claim that the other dentist advised Bailey that some of the fillings were unnecessary and some were poorly put in.

Bailey’s attorneys, Jeremiah Ross and Linda Williams, also claimed that Saleh contacted Bailey after he reviewed the dentist on various web sites, threatening him to remove them. They say Bailey removed the postings out of concern for his and his family’s safety. Even though Bailey removed the postings, Saleh is proceeding with his suit. (Saleh’s lawyer declined to comment.)

COMMENTS:

Anonymous: If he has 10 cavities, then no problem. If he doesn’t then there is a problem. If he violated Yelp’s policy and wrote an outright lie as fact, then he has a problem. He was specific in his allegation. People need to understand that their words have consequences and if those consequences are damaging, then they should be prepared to pay a price equal to the amount of damage that they cause. It is right for the party in the wrong in an auto accident to pay damages then the party committing libel should have to pay up as well. I doubt that this guy caused $300,000 in damages and he took his statement down quickly. However, some lawyer is going to figure it out one day and some mean and hate filled people are going to change their attitudes. The problem is that most stupid people who have time to waste writing knee jerk nonsensical reviews do not have any money and the lawyers will pass. He will likely win, but not because it is okay to write lies and hide behind freedom of speech. Speaking of free speech, is it okay to give out legal advice? What if the legal advice turns out to cost someone? Is the person that gives out legal advice responsible for their words or is that protected under freedom of speech as well?

Julie Anne: I’ve got my spray can ready, Anonymous. BTW: Where do you get this: “He was specific in his allegation.” Where is his allegation referenced? I haven’t seen the original review anywhere or a copy of it anywhere.

Anonymous: Hmmm. I thought that I gave a pretty honest assessment. Not sure how what I wrote offends you. According to the the quote in the news article that I read, he was specific about the number of cavities that the dentist said he found. That seems pretty specific. I just don’t think that it is right for people to take shots at someone because they are in business and for no other good reason. That certainly was not the founders intent when the Bill of Rights was written. I do not think that the Anti-Slapp law was written to stop something like this from being heard in court either. Both legal concepts are exploited by people with too much time on their hands. Just my opinion, but there are many that agree with me. This dentist is probably ill advised to bring such a suit and is very likely to lose. He certainly has the right to defend himself.

Julie Anne: So you are implying that this guy is taking shots at someone just because they are in business? Ok. That explains everything. We’ll see how this plays out and I think you are missing the purpose of the anti-SLAPP. Let’s say that Bailey was wrong at posting his review (I don’t have enough information to say that at all). He was asked to remove his negative comment – actually, he was threatened by legal action to remove it. So Bailey removed it and was still sued. Who is showing bully behavior here?

An Attorney: It is my opinion that the dentist will suffer the “Streisand effect” and that might result in him having to relocate to have a successful practice. Anonymous, if it is clearly an opinion, then the statement is protected speech under the First Amendment and under the Oregon Anti-SLAPP law. And Yelp states that the statements therein are opinion and not matters of fact. BTW, if the dentist was wrong about the cavities, he could also be liable for malpractice, as well as having to pay the defendant’s legal bills, which can run to $50,000 very quickly. There are too many people who get in a hurry to sue without counting the costs and the risks before doing so. I suspect that the dentist will suffer more loss of business from the suit than from the comment. It is called shooting oneself in the foot with the aid of an attorney!

Julie Anne: An Attorney – your comment got stuck in my spam box . So sorry! Most reasonable people who read review sites realize that there will always be a few negative comments and will disregard them if the large majority of comments are positive. This dentist, in addition to my former pastor, brought far more negative attention to themselves by suing. It’s telling the world how they deal with conflict.

Anonymous: Attorney is right and the dentist did more damage to himself than the poster. It is a little different in JA’s case and I really don’t know why Oneal did not go after the “false report” a bit stronger. I believe that I would have gotten all of that out and then launched a targeted lawsuit against whomever was responsible. If anything, that set of events related to his family getting investigated was well over the line. Stalking is never acceptable, either.

Watcher of Anonymous: There goes Anonymous again. Perhaps Anonymous should ask the source about why they didn’t use Anonymous’ wisdom and do things Anonymous’ way. And do some of Anonymous’ suggestions about this and that constitute “free legal advice”? Anonymous proves again that Anonymous is logically inconsistent.

Anonymous: Does not look like much of a thread going here. But, you read your history and case law concerning Anti-Slapp and then get back to me. I think that you will find that it is for two things: To protect Freedom of Speech, and to assure that regular people have a voice at public hearings concerning property rights and zoning. Anything other than that is just plain abuse and giving one party more rights over another. I should lose money and my right to recover so that someone can entertain themselves? It is not intended to allow someone to hide behind the First Amendment and inflict damages on another party for whatever reason. Before you say it ain’t so, you study up real good. Start with the Federalist papers and work up.

Watcher of Anonymous: Anonymous must seem to find “stirring the pot” comments and demands for others to “get back to me” to be entertaining. Ironic. Perhaps Anonymous is addicted to ensuring there’s “much of a thread going”? Julie Anne doesn’t owe Anonymous or Anonymous’ demand anything. Maybe Anonymous needs to have Anonymous’ own blog to lay out Anonymous’ own theory of the import of the Federalist papers and etc.

An Attorney: First Amendment jurisprudence allows opinion that is negative about someone and protects it as free speech from being defamation. The Anti-SLAPP law just allows those who win after being sued for expressing opinion to recover their legal fees. The law does not pay the defendant, just their legal fees and legal costs.

Kathi: Wow! This is the first I’ve heard of this. If I were a patient at that orthodontist’s office, I would most likely leave his practice and find another orthodontist. I don’t think I’d like the chance of being sued if I felt that he was not providing a good service. The only other case I’ve seen recently was about an orthodontist being sued by a man who says that the doctor intentionally left his braces on for 11 years! I think there’s more to that story.

Julie Anne: I’m curious, Kathi, do you use review sites like Google, Yelp, DexKnows? I’ve been using review sites for years – primarily when looking for hotels, restaurants, etc. Some might find this surprising, but I rarely leave a negative review. If I receive service that goes over and above the normal expected service, I like to give a shout-out by leaving a positive review. I have definitely gone to places where I could have left negative reviews, but instead, prefer to handle those in person and usually they get the situation resolved that way. I have left positive reviews after having a negative experience and then explain how management made things right. That is important, too. On this sentence: “ I don’t think I’d like the chance of being sued if I felt that he was not providing a good service.” are you saying that you wouldn’t like the risk of being sued if you left a negative review?

Kathi: I use Yelp mostly for looking at reviews of places. I have left a couple, but nothing negative. However, I have a friend who uses Yelp quite a bit. She left a negative review on a restaurant and received a good response back from the owner. You just never know how a person is going to respond to a negative review. I would hope that the business would take it seriously and learn from the person making the comment. I think that most who take it poorly, such as those who decide to sue, are under the impression that they are the best at what they do. So, who is the customer to question. If I were a patient at this particular doctor and I found out he was suing another patient I would get out because to me, that doctor has set a standard. I would not be comfortable going to see him knowing that if I didn’t like his service, and decided to say something to someone about it, I could be sued for my opinion. I guess that this comes from watching relatives who are sue happy and will say that they’ll sue someone if they are wronged in any way. By the way – that’s a great update on the post!

Julie Anne: I wonder how many share your thoughts, Kathi, that if they leave a negative review they might be sued? That kind of defeats the purpose of reviews if you can’t leave an honest review, even if it is negative. I don’t think I’ve ever left a negative review without going up the channels to get the situation resolved. Public reviews are obviously public and it’s important to give the benefit of the doubt first or to allow them an opportunity to make a situation better, if possible.

Headless Unicorn Guy: According to the complaint. Bailey said he had never had a cavity in 32 years until Saleh found several. Bailey’s lawyers have responded by stating that Bailey went to Saleh for dental work and then went to another dentist after experiencing pain. They claim that the other dentist advised Bailey that some of the fillings were unnecessary and some were poorly put in. Isn’t that called “Malpractice”? Or (for the suddenly-appearing cavities and unnecessary fillings) “Fraud”?

Spencer Bailey:I am Spencer Bailey, the defendant in the case against Dr. Saleh and Dental Dynamics. I stumbled across this page when I was researching your case (earily similar!). I wanted to personally thank you for calling attention to my case and to the issue of internet defamation in general. As you and I both know, being sued is scary and embarassing and I am so glad that you prevailed as well (We won our anti-SLAPP motion this morning!. Jeremiah Ross and Linda Williams were expert attorneys and am so grateful for their hard work in this case. I wish you the best of luck and greatly appreciate your work in advancing this cause.